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BU354 (259)
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Chapter 2

BU354 Chapter 2 - The Changing Legal Emphasis.docx

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Chet Robie

Chapter 2 – The Changing Legal Emphasis The legal Framework for Employment in Canada  HRIA and IPMA survey results showed that HR professionals rated business acumen the most critical piece, as well as employment law/ legislative awareness and talent management being second.  Set of responsibilities that exist between the employee and employer includes formal and informal expectations. o Informal and personal expectations are difficult to manage and correct if one party feels that the other has violated the expectations within the mutual relationship. o The influence and impact of formal expectations plays a significant role the workforce  Primary objective of most employment legislation in Canada is to prevent employers from exploiting paid workers, assuming that an implicit power imbalance exists in the employment relationship (in favour of the employer).  Government’s role is to balance employee-employer needs through the development and maintenance of employment legislation. o Judicial system provides a forum for interpreting legislation.  The legislation is modelled like the US National Labour Relations Act with three differences: 1. Canadian population is more accepting and expect government-mandated regulations about organizational activities 2. In the US, “employment at will” allowed either the employee or employer to break the relationship with no liability provided that no autonomous employment contract exists and employees aren’t represented by a collective bargaining unit. In Canada, employers are permitted to terminate employment without a reason provided they ensure reasonable notice is given to workers. Employee is permitted to strike, quit or cease employment without penalty, provided they alight with the legislation. 3. US legislation is largely centralized, whereas, in Canadian legislation, laws reside with the provinces and territories in Canada.  90% of provincial/territorial employment law governs the Canadian workers  10% are employed in the federal employment legislation including Crown corporations and agencies, business engaged in transportation, banking, and communications  14 jurisdictions – 10 provinces, 3 territories, and Canada as a whole Employment-Specific Legislations  Employment Standards Act varies slightly by jurisdiction o Great deal of commonality, but differences include vacations, statutory holidays, and minimum wage standards. Although they are provided, specific entitlements may vary. o Must continually monitor legislation in each jurisdictions and remain current as legislation changes  Laws that specifically regulate some areas of HRM include occupational health and safety, union relations, and pensions and compensation.  Issues of contract law between employer-employee o Collective agreements vs. individual employment contracts that impose specific requirements and constraints on management and employee policies, procedures, and practices  Avoiding minor infractions, the court developed regulations, which are legally binding rules established by special regulatory bodies to enforce compliance with the law and aid in its interpretations.  Within various levels of legislation, there is a sense of hierarchy. o The more general the impact of legislation, the more it supersedes lower levels of legislation  Two imposing interpretations of Canadian legislation: o 1) Employees often choose to view the regulations as a statutory floor and expect to receive higher than the minimum requirements. o 2) Employers often prefer to view legislation guidelines as a contractual ceiling and align max commitment levels to the min established in the guidelines. Legislation Protecting the General Population Reactive (complaint driven) in nature, the focus of human rights legislation is on the types of acts in which employers should not engage. This includes: 1) The Charter of Rights and Freedoms, federal legislation that is the corner stone of human rights 2) Human rights legislation, which is present in every jurisdiction 1) The Charter of Rights and Freedoms  Charter of Rights and Freedoms – Federal law enacted in 1982 that guarantees fundamental freedoms to all Canadians  Applies to the actions of all levels of government (federal, provincial/territorial, and municipal) and agencies under their jurisdiction as they go about their work of creating laws.  Takes precedence over all other laws; all legislation must meet the charter standards.  Two notable exceptions: o 1) Charter allows laws to infringe on Charter rights if they can be demonstrably justified as reasonable limits in a “free and democratic society”  It’s open to interpretation before the Supreme Court of Canada o 2) a legislative body invokes the “notwithstanding” provision that allows the legislation to be exempted from challenge under the Charter  The Charter provides the following rights and freedoms to every Canadian: o 1. Freedom of conscience and religion o 2. Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication o 3. Freedom of peaceful assembly o 4. Freedom of association  Charter also provides: o Canadian multicultural heritage rights, o First Nations’ rights, o minority language education rights, o equality rights, o the right to live and work anywhere in Canada o the right due process in criminal proceedings, o the right to democracy  equality rights – provides the basis for human rights legislation, as it guarantees the right to equal protection and benefit of the law without discrimination. Human Rights Legislation  Human rights legislation – jurisdictions specific legislation that prohibits intentional and unintentional discrimination in employment situations and in the delivery of g/s.  It supersedes the terms of any employment contract or collective agreement  Supervisors and managers must be thoroughly familiar with the human rights legislation of their jurisdiction and their legal obligations and responsibilities specified therein.  It prohibits discrimination against all Canadians in a number of areas, including employment  Most provincial/territorial laws are similar to the federal statute in terms of scope, interpretation, and application  All jurisdictions prohibit discrimination on the grounds of race, colour, religion, sex, marital status, age, disability, and sexual orientation.  Some jurisdictions prohibit discrimination on the basis of family status, nationality or ethnic origin, and various other grounds. Discrimination defined  Discrimination – a distinction, exclusion, or preference based on one of the prohibited grounds that has the effect of nullifying or impairing the right of a person to full and equal recognition and exercise of his or her human rights and freedoms  When someone is accused of discrimination, it generally means that he/she is perceived to be acting in an unfair or prejudiced manner within the context of prohibited grounds for discrimination. Intentional Discrimination  An employer cannot discriminate directly by deliberately refusing to hire, train, or promote an individual.  Differential or unequal treatment – treating an individual differently in any aspect of terms and conditions of employment based on any of the prohibited grounds o E.g. it’s illegal for an employer to request that only female applicants for a factory job demonstrate their lifting skills or to insist that any candidates with a physical disability to undergo a pre-employment medical, unless all applicants are being asked to do so  It’s illegal for an employer to engage in intentional discrimination indirectly through another party o An employer may not ask someone else to discriminate on his or her behalf  Discrimination because of association –denial of rights because of friendship or other relationship with a protected group member o E.g. refusal of promoting a highly qualified male into senior management on the basis of the assumption that his wife, who was recently diagnosed with cancer, will require too much of his time and attention that her needs may restrict his willingness to travel on a company basis. Unintentional Discrimination  Unintentional/ constructive/ systemic discrimination – embedded in policies and practices that appear neutral on the surface and are implemented impartially, but have an adverse impact on specific groups of people for reasons that aren’t job related or required for the safe and efficient operation of the business o E.g. minimum height and weight requirements, which screen out disproportionate numbers of women o E.g. culturally biased or non-job-related employment test, which discriminate against specific groups. Permissible Discrimination via Bona Fide Occupational Requirements  Employers are permitted to discriminate if employment preferences are based on a bona fide occupational requirement (BFOR) o BFOR – a justifiable reason for discrimination based on business necessity (that is, required for the safe and efficient operation of the organization) or a requirement that can be clearly defended as intrinsically required by the tasks an employee is expected to perform o A BFOR exception to human rights protection is fairly obvious  E.g. when casting in theatre, there may be specific roles that justify using age, sex, or national origin as a recruitment and selection criterion.  Meiorin case established 3 criteria used to assess if the discrimination qualifies as a bona fide occupational requirement: a) The question of rationale: Was the policy or procedure that resulted in the discrimination based on a legitimate, work-related purpose? b) The question of good faith: Did the decision makers or other agents of the organization honestly believe that the requirement was necessary to fulfill the requirements of the role? c) The question of reasonable necessity: Was it impossible to accommodate those who have been discriminated against without imposing undue hardship on the employer?  Issues of BFORs get more complicated in situations where the occupational requirement is less obvious; the onus of proof is then placed on the employer. Reasonable Accommodation  Reasonable accommodation – adjustment of employment policies and practices that an employer may be expected to make so that no individual is denied benefits, disadvantaged in employment, or prevented from carrying out the essential components of a job because of grounds prohibited in the human rights legislation o May involve:  scheduling adjustments to accommodate religious beliefs, or  workstation redesign to enable an individual with a physical disability to perform o employers are expected to accommodate to the point of undue hardship – the financial costs of accommodation or health and safety risks to the individual concerned or other employees would make accommodation impossible o failure to make every reasonable effort is a violation of human rights legislation in all jurisdictions  Supreme court of Canada o Duty to accommodate doesn’t require an employer to completely alter the essence of the employment contract, whereby the employee has a duty to perform work in exchange for remuneration Human Rights Case Examples  If there were 20 criteria used to make a decision, and even one of those criteria violated protection against discrimination as per the applicable human rights legislation, then the entire decision made can be deemed illegal.  Provincial/territorial human rights commissions most often encounter cases related to: o disability, o gender and harassment, and o race or ethnicity 1. Disability  makes up almost half of all human rights claims; focuses more on the effect of discrimination  disability includes a wide range of conditions, some which are visible and some aren’t  a distinction can be drawn between a physical or a mental disability  may be present from birth, caused by an accident or develop over time and may include: o physical o mental o learning disabilities o mental disorders o hearing or vision disability o epilepsy o drug and alcohol dependencies o environmental sensitivities  temporary illnesses are generally not considered to be disabilities under human rights legislation, unless related to a workplace safety claim, but mental disorders are included in the definition of a disability  the intent of providing protection from discrimination based on past, present, or perceived disabilities is largely based on the principle of having an inclusive society with a barrier-free design and equal participation of persons with varying levels of ability  firms must build conceptions of equality into workplace or other standards  Supreme Court of Canada suggests 3 broad inquiries to determine discrimination: o 1) Differential treatment: was there substantively differential treatment due to a distinction, exclusion, or preference or because of a failure to take into account the complainant’s already disadvantaged position within Canadian society? o 2) An enumerated ground (a condition that is explicitly protected by legislation): Was the differential treatment based on an enumerated ground? o 3) Discrimination in a substantive sense: Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from a person? Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?  Accommodation: General principles for accommodating persons with disabilities: o 1) The accommodation should be provided in a manner that most respects the dignity of the person, including an awareness of privacy, confidentiality, autonomy, individuality, and self- esteem.  Disabled persons have the right to integration and full participation  Barriers should be removed to the point of undue hardship  Workplace programs should be designed by inclusion to combat “social handicapping”, societal attitudes and actions create non-inclusive thinking against people who have no or few limitations o 2) discrimination must be legally defensible, in the sense that the firm must demonstrate individualized attempts to accommodate the disabled to the point of undue hardship  Meiorin test is used to establish if the company reached the point of undue hardship  Employers have the legal duty to accommodate persons with disability, and the employees have a responsibility to seek accommodation, cooperate in the process, exchange relevant info, and explore accommodation solutions together  Easily made accommodations:  Increased flexibility n work hours or break times  Providing reading material in digitized, Braille, or large print formats  Installing automatic doors and making washrooms accessible  Job restructuring, retraining, or assignment to an alternative position within the company o 3) the duty to accommodate requires the most appropriate accommodation to be undertake to the point of undue hardship  Accommodations are unique, numerous, part of a process, and a matter of degree  An accommodation is deemed appropriate if it results in equal opportunity to attain the same level of performance, benefits, and privileges others experience, or if it’s adopted for the purpose of achieving equal opportunity and meets the individual’s disability-related needs Harassment  Some jurisdictions prohibit harassment on all prescribed grounds, while others only expressly ban sexual harassment.  Harassment – unwelcome behaviour that demeans, humiliates, or embarrasses a person that a reasonable person should have known we be unwelcome  Bullying involves repeated and deliberate inciden
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